On January 20, 2025, President Trump signed Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.” In response, multiple parties filed individual suits to enjoin its implementation, resulting in three federal courts issuing separate nationwide injunctions.
On June 27, 2025, the U.S. Supreme Court addressed the constitutionality of the nationwide injunctions in Trump v. CASA, Inc., while ultimately holding that the federal courts exceeded their judicial powers by issuing these “universal injunctions” that provided widespread relief beyond the parties in the suit.1 However, the Court did not address the broader and more fundamental question of whether the executive order is constitutionally permissible.
President Trump’s executive order offers a re-interpretation of the first clause of the 14th Amendment — often referred to as the citizenship clause — by redefining which babies born in the United States are not “subject to the jurisdiction thereof.” To achieve this goal, the executive order denies citizenship to babies born in the U.S. when:
The executive order quickly created controversy because it alters a fundamental American right as it has been understood for over a century. As written, the executive order strips individuals of the rights granted by the 14th Amendment and is therefore Constitutionally impermissible.
The 14th Amendment was ratified in 1868 and served to correct one of the most egregious Supreme Court decisions in American history, the Dred Scott v. Sandford decision. In 1857, the Court’s decision in the Dred Scott case held that formerly enslaved individuals were not and were never intended to be citizens of the U.S.2
After the Civil War ended in 1865, Congress passed the 13th, 14th, and 15th Amendments (the Reconstruction Amendments) to remedy the effects of slavery and provide equal rights for formerly enslaved Black Americans. Specifically, the 14th Amendment served to overrule the Dred Scott decision and guarantee birthright citizenship as a constitutional right.
The text of the 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” While originally drafted with Black Americans in mind, the 14th Amendment now serves to provide and protect birthright citizenship to all, regardless of race.
The executive order strives to redefine which babies born in the U.S. are “subject to the jurisdiction” of the U.S.. However, this redefinition violates the plain text of the amendment.
In United States v. Wong Kim Ark, the Supreme Court interpreted the 14th Amendment and held that a young man born in the U.S. to two parents with Chinese citizenship was in fact a U.S. citizen.3 The Court held that the plain meaning of the term “subject to the jurisdiction thereof,” is that people physically present in the U.S. are subject to its jurisdiction.4 Even though Wong Kim Ark’s parents, as Chinese citizens, did not owe the U.S. exclusive allegiance, their son was born within the jurisdiction of the U.S.5
The Supreme Court has recognized narrow exceptions to birthright citizenship, finding that children born to foreign diplomats, alien enemies in hostile occupation and Indigenous peoples subject to tribal laws are not subject to the jurisdiction of the U.S. upon birth in the country.6 However, the 14th Amendment’s citizenship clause has never been read to apply only to children born in the U.S. to at least one parent who is a permanent resident or citizen of the U.S., as is the case under the executive order.
Proponents of the executive order have argued that “subject to the jurisdiction thereof” requires sole allegiance to the U.S. However, this argument was plainly rejected in Wong Kim Ark, which stated, “[to] hold that the fourteenth amendment…excludes from citizenship the children born in the United States of citizens or subject of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”7 The executive order aims to implement distinctions between allegiance and jurisdiction, which is the same logic that Wong Kim Ark rejected.
The government argues that the executive order aligns with the Court’s holding because it contends that the Court only granted citizenship because Wong Kim Ark’s parents were permanently domiciled in the U.S. The government claims that permanent domicile is analogous to lawful permanent resident (LPR) status. However, as Edgar Chen and Chris M. Kwok have convincingly argued,8 this analogy demonstrates a fundamental misunderstanding of the legal obstacles Chinese migrants to the U.S. faced in the late 1800s, and wrongly equates Wong Kim Ark’s parents’ status in the U. S. with current day LPR status.
The Immigration and Nationality Act of 1952 further supports Wong Kim Ark’s holding. The statute states, “a person born in the United States, and subject to the jurisdiction thereof” is a “national[] and citizen[] of the United States at birth.” 8 U.S.C. § 1401 (2020). Moreover, additional Supreme Court precedent supports the general proposition that children’s legal rights should not be affected by their parents’ citizenship status. For example, this principle has been upheld in Plyler v. Doe (invalidating Texas law discriminating against children of non-citizens by denying admission or charging tuition to attend public school).9
Even if the executive order were constitutionally permissible, the president lacks the authority to change the Constitution through executive action. Constitutional amendments may only be passed by a vote of two-thirds of the House of Representatives and the Senate and ratified by three-quarters of the states. Additionally, the president lacks the authority to overturn Supreme Court precedent; only the Court itself may overturn past rulings.10
Executive Order 14160 violates the 14th Amendment as historically interpreted by the Supreme Court. It attempts to achieve through executive action what amounts to a constitutional amendment.
Phillips Lytle Summer Associate Tyonna Acoff contributed significantly to the research and drafting of this article.
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